Heller quotes from the majority – opinion is linked in the next post

“Logic demands that there be a link between the stated purpose and the command.” (4)

“But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.” (4)

“But where the text of a clause itself indicates that it does not have operative effect . . . a court has no license to make it do what it was not designed to do.” (4)

“Nowhere else in the Constitution does a "right’ attributed to "the people’ refer to anything other than an individual right.” (6)

“"[T]he people,’ refers to all members of the political community, not an unspecified subset.” (6)

“We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” (7)

“[T]he most natural reading of "keep Arms’ in the Second Amendment is to "have weapons.'” (8)

“The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.” (8)

“[T]here are a few examples, all of which favor viewing the right to "keep Arms’ as an individual right unconnected with militia service…’Keep arms’ was simply a common way of referring to possessing arms, for militiamen and everyone else.” (9) (emphasis in original)

“At the time of the founding, as now, to "bear’ meant to "carry.’. . . When used with "arms,’ however, the term has a meaning that refers to carrying for a particular purpose – confrontation.” (10)

“Although the phrase implies that the carrying of the weapon is for the purpose of "offensive or defensive action,’ it in no way connotes participation in a structured military organization. (11)

“Worse still, the phrase "keep and bear Arms’ would be incoherent. The word "Arms’ would have two different meanings at once: "weapons’ (as the object of "keep’) and (as the object of "bear’) one-half of an idiom. It would be rather like saying "He filled and kicked the bucket’ to mean "He filled the bucket and died.’ Grotesque.” (13)

“[I]f "bear arms’ means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game.’ The right "to carry arms in the militia for the purpose of killing game’ is worthy of the mad hatter. (15)

“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” (19)

“Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.” (22) (italics in original)

“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not[.]” (22)

“It is true that the term "State’ elsewhere in the Constitution refers to individual States, but the phrase "security of a free state’ and close variations seem to have been terms of art in 18th-century political discourse, meaning a "free country’ or free polity.” (24)

“That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents . . . During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Anti-federalist rhetoric.” (25)

“The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.” (26)

“Our interpretation is confirmed by analogous arms bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.” (27)

“It is dubious to rely on [the drafting] history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.” (30)

“"Legislative history,’ of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. "Postenactment legislative history,” a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.” (32)

“As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.” (32)

“We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia – and he recognized that the prevailing view was to the contrary.” (37)

“The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service.” (37)

“Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.” (42)

“Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service.” (44)

“It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.” (44)

On the question of the Second Amendment’s application to the States: “With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” (48, footnote 23)

“And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that.” (49)

“Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” (50)

“Read in isolation, Miller’s phrase "part of ordinary military equipment’ could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.” (52)

“We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” (53)

“It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, ChampaignCty., 333 U. S. 203 (1948).” (53-54)

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (54)

“We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” (55)

“It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.” (55)

“The handgun ban amounts to a prohibition of an entire class of "arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to "keep’ and use for protection of one’s home and family,’ would fail constitutional muster.” (56-57)

“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.” (57)

“Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” (57-58)

“The District argues that we should interpret this element of the statute to contain an exception for self-defense. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions.” (58)

“Respondent conceded at oral argument that he does not "have a problem with . . . licensing’ and that the District’s law is permissible so long as it is "not enforced in an arbitrary and capricious manner.’ We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.” (59)

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ approach. The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” (62-63)

“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” (64)

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” (64)

Recent Decisions

United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.

Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.

Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.

Current Relists

Conference of December 7, 2018

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.